By Oliver Omoredia
In SC.859/2014-UKIRI EMONENA BLESSING v. FEDERAL REPUBLIC OF NIGERIA decided by the Supreme Court on 13th day of April 2018, the Appellant challenged the decision of the Court of Appeal, Port Harcourt Division or Court remitting its case to the trial Court for hearing de novo before another Judge. The issues which came for the consideration of the apex court in the appeal are summarized in this write up.
FACTS OF THE CASE
In SC.859/2014, the Appellant (Ukiri Emonena Blessing), a legal practitioner, was counsel to one Chief Samuel Onowighose and on whose behalf the Appellant had commenced garnishee proceedings against the Central Bank of Nigeria for a judgement debt of 62,128,415.00 only (Sixty-two million, one hundred and twenty-eight thousand, four hundred and fifteen Naira). It was the case that the had Appellant fraudulently instructed the CBN to pay the said judgement sum into his Law Firm, (E.B. Ukiri & Co) Diamond Bank account against the express instructions of the client to both the CBN and Appellant that the money be paid in the client’s name and/or directly into his First Bank Plc account which the Client furnished the Appellant and CBN.
The CBN in obedience to the garnishee order absolute in the suit paid the said judgement debt, however, the Appellant upon receipt of the sum, only remitted N24,000,005.00 (Twenty-four million, five thousand naira only) to the client and withheld balance of N38,123,415.00 (thirty-eight million, one hundred and twenty-three thousand, four hundred and fifteen naira). The client claimed that the Appellant later started dissipating and misappropriating the said balance without any notice of the client who therefore petitioned the EFCC. Upon investigation the EFCC arraigned the Appellant on a three-count charge of Money Laundering.
In the course of the criminal trial, the Appellant brought an application challenging the charges and praying the trial court to quash same. Ruling on the said application was reserved for 30th May 2013, however before the said adjourned date, the Prosecution on realized that proof of evidence had been inadvertently omitted and not filed with the charge. The Prosecution therefore filed proof of evidence with documents attached to the Prosecution’s counter affidavit in opposition to the Appellant’s motion to quash the charges and same was served on the Appellant.
The trial judge at the ruling on the motion, dismissed the application of the Appellant and refused the request to quash the charges.
Aggrieved by the decision, the Appellant appealed to the Court of Appeal. Where the court although holding that the appeal succeeded, remitted the case back to the trial court for trial de novo. Aggrieved by the decision, the Appellant appealed to the Supreme Court.
The issues raised at the Supreme Court by the Appellant where:
- Whether the learned Justices of the Court of Appeal were right in considering and upholding the Respondent’s preliminary objection which had been withdrawn and struck out?
- Whether the learned justices of the Court of Appeal were right in remitting the case to the trial Court for hearing without considering and determining the merits or otherwise of the Appellant’s motion to quash/dismiss charge.
THE APPELLANT’S CONTENTION AT THE SUPREME COURT
At the Supreme Court, the Appellant contended that the Respondent had filed a preliminary objection at the Court of Appeal on 14/5/2014 which the Respondent’s counsel later voluntarily withdrew and same was struck out. However, the same grounds of the preliminary objection which was in the withdrawn motion was argued in the Respondents brief of argument. The Appellant therefore argued that the said preliminary objection had not complied with Rule 10 (1) of the Court of Appeal Act 2011 and therefore the Court ought not to have considered same. The Appellant also argued that the issues having been withdrawn in the earlier preliminary objection where no longer live issues and that the Respondent could not raise the preliminary objection in its brief. Furthermore, the Appellant contended that a preliminary objection can only be valid and competent when it challenges the entire appeal and not against one or more grounds of appeal as was done by the Respondent and upheld by the Court of Appeal.
The Appellant also submitted that having allowed the appeal and set aside the decision of the trial Court, the Court of Appeal ought to have invoked their general powers under the Court of Appeal Act to determine the appellant’s motion and prayers Nos. (ii) and (iii) in the Appellants Notice of Appeal especially when the consideration/determination of the application did not involve the taking of oral or further evidence. The Appellant argued that the Court below was wrong to have ignored the Appellant’s prayers in the notice of appeal and doing so violated the Appellant’s right to fair hearing as guaranteed under the constitution.
DECISIONS OF THE COURT ON ISSUES RAISED
On whether the failure to attach proof of evidence with the charge was fatal, the Supreme Court in holding that an error in the charge or proof or evidence is only fatal if the defendant is misled by the error held that:
“Though inadvertently the heading of the list of exhibits in the proof of evidence is erroneously captioned “in the High Court of Bayelsa State”, all the forty-eight (48) documents listed therein which includes the extrajudicial statement of the appellant, are the same with those attached to the counter affidavit in serial number 1 of the index to the Supplementary Record and are in respect of the petition and charge filed against the appellant. This inadvertent error in the proof of evidence is not fatal as the appellant is not misled by it as all the documents listed therein are in respect of the petition against him and the error can be rectified by the prosecution by way of an amendment of the proof of evidence or charge which can be done at any time before judgment.” See Section 163 of the Criminal Procedure Act.
On whether a preliminary objection incorporated in the brief could be considered and upheld by the court, the Supreme Court held that:
“Again, to be noted is that the appellant took exception to the absence of a formal and separate Preliminary Objection by the respondent in the Court below and that the Court of Appeal Justices ought not to have considered the Preliminary Objection brought in and argued in the Respondent’s brief of argument to which the Appellant had responded by a Reply brief properly filed. The position of the Appellant on that score is not supported by the relevant rules of Court particularly Order 10 Rule 1 of the Court of Appeal Rules 2011 which provided for such an objection coming to the notice of the appellant at least three clear days before the hearing of the appeal. It has not stipulated that such notification not being formally filed as preliminary Objection cannot be entertained. This is so as Order 10 Rule 1 of the Court of Appeal Rules 2011 is not mandatory as it gives the Court latitude on whether to entertain the objection or not and especially since the matter relating to the jurisdiction of the Court can be placed before Court formally or informally, jurisdiction being a thresh-hold matter and the lifeblood of any suit and the attitude or policy stance of Court is that however the Court is to be sure it has jurisdiction, whatever the route of arrival of the concern is allowed…Therefore incorporating the arguments on the objection in the respondent’s brief of argument settled the issue of whether or not the appellant was put on notice and not ambushed. The situation is all the more clear that there was no surprise and nothing hidden and appellant well aware with more than the three day notice prescribed and prepared for the attack when he filed the Reply Brief in response to the Objection. The matter was settled thereby…Another way of putting across what I am labouring to say is that the non-compliance with the provisions of Order 10 Rule 1 of the Court of Appeal Rules 2011 in view of Rule 3 of the said Order 10 and this because the non – compliance is not fatal being a mere irregularity and could be waived by the other side and clearly from the record the appellant waived it. The focal point in whether or not the Preliminary Objection could be considered is if the other side was notified or not.”
On whether the Court of Appeal was bound to consider the motion of the Appellant and decide on same, the Supreme Court held:
“The Appellant had sought that the Court of Appeal after setting aside the decision of the trial Court and ordering a remitting of the case to the trial Court for rehearing before another judge ought to have gone on to attend to and pronounce on all the issues raised in the Appellant’s motion on notice to quash/dismiss the charge before remitting the case and that this was a violation of the appellant’s right to fair hearing. The position of the appellant is not sustainable since the Court of Appeal had declined jurisdiction over the incompetent grounds of appeal and the issues distilled from those grounds and so it was unnecessary to descend into other issues in the appeal. I place reliance on F.C.D.A. v Sule (1994) 3 NWLR (Pt.332) 256 at 282; Ikechukwu v FRN (2015) 3 MJSC (Pt.1) 123 at 144-145.”
In conclusion, all the Supreme Court dismissed the appeal and upheld the decision of the court of appeal remitting the case back to trial. All sitting Justices of the Supreme Court agreed with the decision.
Oliver Omoredia, +2348100193573, firstname.lastname@example.org
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